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Leach v. Commonwealth

Supreme Court of Kentucky

April 18, 2019



          COUNSEL FOR APPELLANT: Julia Karol Pearson Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General



         An Ohio County jury found Ronnie Leach guilty of six counts of Sexual Abuse in the First Degree, victim under 12; one count of Sexual Abuse in the First Degree; and four counts of Sodomy in the First Degree, victim under 12. He was sentenced to life in prison. This appeal followed as a matter of right. Having reviewed the arguments of the parties, we affirm the judgment of the Ohio Circuit Court.

         I. BACKGROUND

         In 2014, Misty S.[1] reported to police that Ronnie Leach had sexually assaulted her from approximately 1985 to 1988. At that time, Leach and Misty S.'s aunt, Janet Welch, were married. These assaults occurred over a period of years, when numerous members of the family were gathered at Leach's home. She disclosed that Leach kissed her and fondled her breasts. He digitally penetrated her on a number of occasions. He forced her to touch his penis. He performed oral sex on her, and he forced her to perform oral sex on him. These incidents occurred both outside of Leach's house, in the woods at the back of his property, and also inside of his house, in a bedroom and a laundry room. When they would occur in the woods at the back of Leach's property, they occurred while playing a game called "taxi." During the course of this game, various people would pile into an old car and drive it around the property. The driver would make various stops around the property, dropping off different combinations of people, returning a few minutes later to pick them back up. Leach would sexually assault Misty S. when the two of them were dropped off alone, while waiting for the "taxi" to return to pick them up. Misty S. did not report this abuse until 2014, when she heard that Leach's stepdaughter, April T.[2], had also accused him of sexually abusing her. Additional facts will be developed as needed in the analysis of the legal issues in this case.

         II. ANALYSIS

         Leach argues several grounds for relief: (1) the trial court erred when it allowed the government to present KRE[3] 404(b) evidence; (2) the trial court erred when it did not allow the defense to present KRE 412 evidence; and (3) the trial court erred when it allowed Facebook messages into evidence when they were not properly authenticated. We will address each of these contentions in turn.

         A. Standard of Review

         The standard of review on evidentiary issues is abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) and Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000), Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994), Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004). All of the issues on appeal in the present case are evidentiary issues, and therefore will be reviewed using an abuse of discretion standard.

         B. The trial court did not err in admitting KRE 404(b) evidence.

         1. KRE 404(b) in general

         KRE 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may be admissible if offered for some other purpose. Because the degree of the potential prejudice associated with evidence of this nature is significantly higher, exceptions allowing evidence of collateral criminal acts must be strictly construed. As a result, KRE 404(b) is exclusionary in nature. Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). The provision offers no easy formula for resolution of issues that are inherently difficult and that require a very careful balancing of competing interests.[4] As Professor Lawson states, "With no black-letter rules, bright lines, or shortcuts to guide the users of 404(b), the need for careful analysis and reasoned judgment is absolutely essential."[5] The admissibility of KRE 404(b) evidence is within the discretion of the trial court. Clark, 223 S.W.3d at 96.

         In order to determine if other bad acts evidence is admissible, the trial court should use a three-prong test: (1) Is the evidence relevant? (2) Does it have probative value? (3) Is its probative value substantially outweighed by its prejudicial effect? Purcell v. Commonwealth, 149 S.W.3d 382, 399-400 (Ky. 2004). The first prong of the test is whether the proffered evidence is relevant for a purpose other than criminal disposition. KRE 404(b)(1) provides a list of other acceptable uses of "other bad acts" evidence. This list, however, is not exhaustive but illustrative. Tamme v. Commonwealth, 973 S.W.2d 13, 29 (Ky. 1998). In reviewing relevance, courts must determine that the "other bad acts" evidence is offered to prove material facts that are actually in dispute.

         After determining relevancy, the trial court must determine if the evidence of the uncharged crime is sufficiently probative of its commission by the accused to warrant its introduction into evidence. It is sufficiently probative if the trial judge believes "the jury could reasonably infer that the prior bad acts occurred and that [the defendant] committed such acts." Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997).

         Finally, after determining relevancy and probativeness, the trial court must weigh the prejudicial nature of the "other bad acts" evidence versus its probative value. Only if the potential for undue prejudice substantially outweighs the probative value of the evidence must it be excluded. "Prejudice means that evidence produces an emotional response that inflames the passions of the triers of fact or is used for an improper purpose."[6] This goes beyond evidence that is merely detrimental to a party's case. The trial courts have great discretion in weighing prejudice versus probativeness, but do not have discretion to fail to weigh these factors.

         2. The trial court did not err in allowing the testimony of Tracy C.[7]

         The Commonwealth filed notice under KRE 404(c) of its intention to introduce other bad acts evidence regarding Leach's sexual assault of Tracy C. as modus operandi. Tracy C. testified that in 1987, when she was 11 years old, Leach sexually assaulted her by kissing her, touching her breasts, and trying to get in her pants. She could not remember if he had actually touched her vagina. She and Leach were second cousins by marriage - Leach was married to her mother's cousin. Leach sexually assaulted her when she was at his house with various other members of the family. She testified that the incident occurred while they were playing a game of hide and seek on four-wheelers in the woods at the back of his property. She was riding on a four-wheeler with him, hiding from the people on the other four-wheeler when he assaulted her. She said he first kissed her and then touched her breasts. He also touched inside of her pants. Shortly thereafter, she disclosed these allegations and was not alone with Leach again. Leach pled guilty to assault in the fourth degree for this incident.

         The first question in analyzing the admissibility of the Tracy C. allegations is whether they are relevant for a purpose other than to prove the criminal disposition of the accused. As stated before, the list of exceptions in KRE 404(b)(1) is not exhaustive but illustrative. Tamme, 973 S.W.2d at 29. Prior bad acts may be admitted to show un-enumerated exceptions such as common scheme or plan or modus operandi. English, 993 S.W.2d at 943-45.

         The rule for use of a prior crime to establish intent and knowledge by modus operandi has traditionally been stated as: "In order to prove the elements of a subsequent offense by evidence of modus operandi, the facts surrounding the prior misconduct must be so strikingly similar to the charged offense as to create a reasonable probability that (1) the acts were committed by the same person, and/or (2) the acts were accompanied by the same mens rea. If not, the evidence of prior misconduct proves only a criminal disposition and is inadmissible." Id. at 945. "[A]s a prerequisite to the admissibility of prior bad acts evidence, we now require the proponent of the evidence to 'demonstrate that there is a factual commonality between the prior bad act and the charged conduct that is simultaneously similar and so peculiar or distinct that there is a reasonable probability that the two crimes were committed by the same individual." Clark, 223 S.W.3d at 97 (citing Commonwealth v. Buford, 197 S.W.3d 66, 71 (Ky. 2006)). "Although it is not required that the facts be identical in all respects, 'evidence of other acts of sexual deviance ... must be so similar to the crime on trial as to constitute a so-called signature crime."' Dickerson v. Commonwealth, 174 S.W.3d 451, 469 (Ky. 2005) (quoting Rearick v. Commonwealth,858 S.W.2d 185, 187 (Ky.1993)). This Court has further stated, ...

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